Lawmaker files suit regarding amendment on same-sex marriage

In 1998, Hawaii voters approved an amendment to the state constitution that supporters said was against same-sex marriage. Today, supporters of gay marriage say the same amendment supporters their side.

State Rep. Bob McDermott (R-Ewa, Ewa Beach, Iroquois Point) filed a lawsuit in state Circuit Court Wednesday to try to settle the question.

In the current debate on same-sex marriage, opponents have been pushing an effort to let the people decide.

"The people already did vote. They voted in 1998 t9o give the power to the legislators, to their elected officials, to make these decisions," said Lois Perrin of the ACLU.

Section 23 of the Hawaii State Constitution reads, in its entirety:

"The legislature shall have the power to reserve marriage to opposite sex couples."

"I was here in '98, and I thought it meant marriage between a man and a woman, and everyone who voted thought it meant the same thing, too," said McDermott.

McDermott's lawsuit says that's because of how the amendment was described in the voting instructions from the State Office of Elections in 1998. It said:

"A 'Yes' vote would add a new provision to the constitution that would give the legislature the power to reserve marriage to opposite sex couples only."

Andrea Freeman is an assistant professor at the University of Hawaii's William S. Richardson School of Law and teaches a course on constitutional law. She said the amendment is clear.

"The amendment clarified that the legislature could choose to reserve marriage only for opposite sex couples," she said. "But it definitely does not state that it is on the only thing it can do."

McDermott contends that according to settled law, the people's perception of the meaning of a constitutional vote carries precedence.

"What did the people understand they were voting on? Between a man and a woman only, because that's what they were told by the Office of Elections," said McDermott.

Does it matter what it said in the voting instructions?

"No, unfortunately it doesn't," said Freeman. "It sounds like it may have been misleading, but what they voted for, the text of the amendment, is clear."

McDermott said if the circuit court rules against him, he would likely appeal to the state supreme court, a process he expects to take more than a year.